Brendan Schulman v. the FAA

A drone enthusiast doesn’t think the agency should pick on his fellow fliers.

Brendan Schulman has been building and flying radio-control model aircraft for 20 years. He is also a New York City-based attorney defending Raphael Pirker, who was fined $10,000 by the Federal Aviation Administration for making a 2011 commercial flight using a model aircraft. Schulman argued the case before a federal judge assigned to the National Transportation Safety Board and won, but the Federal Aviation Administration intends to appeal the decision.

Air & Space: What did your client, Raphael Pirker, do that brought him to the attention of the FAA? And what was he charged with?

Schulman: Raphael is a drone videographer. [See “Pilot Cam,” June/July 2011.] He travels around the world taking aerial videos from interesting vantage points, including mountains, glaciers, and cities. Two years ago, he was asked to take aerial video for possible use in a commercial on behalf of the University of Virginia Medical Center in Charlottesville. And to do that, he used a five-pound Styrofoam drone with a GoPro camera on the front. He used that to fly around certain parts of the campus.

Mr. Pirker had flown dozens of other similar flights, but he was paid nothing for them. And then he’s doing essentially the same thing and getting a fee.

The FAA determined that it was a commercial aerial photography flight as opposed to recreational, which all of his other flights in the U.S. had been. And given that the FAA has a policy, put into place in 2007, that commercial drone use is not permitted, they invoked the aviation regulation concerning reckless operation of an aircraft. In the absence of a regulation specifically concerning model aircraft or drones, the FAA fined Mr. Pirker $10,000 in connection with his model aircraft flight by alleging that it was reckless.

Why would this flight be a concern to the agency when his others weren’t?

The only difference between the one flight they’ve taken issue with and these other flights he’s done over the past few years is the commercial nature of what he was doing. [T]o me, there’s never been an issue with the commercial use of model aircraft. Obviously, that use is increasing in popularity because with the miniaturization of certain kinds of technologies, people are coming to realize the vast potential for these devices. But it’s just not true that these devices haven’t been used for commercial purposes for many, many years. And in 2007, the FAA basically said, as a matter of unenforceable policy: We’re not going to permit that anymore.

What you’re saying is that Mr. Pirker is not even being charged with flying a drone for commercial purposes. Instead they charged him with reckless use of an aircraft—is that correct?

Well, it’s very clear from their complaint—the formal legal document—that the premise of the penalty against him is the allegation that the flight was commercial in nature. And that’s what leads the FAA to call the device he was operating an unmanned aircraft system rather than a model aircraft. Because it’s the unmanned aircraft system that is subject to the new policy issued in 2007. However, there’s no provision in the policy addressing violations of any rules concerning the use of a model aircraft. So the agency issued a policy, but there was no regulation anywhere to enforce, so the fallback position for the agency was to invoke this general regulation concerning reckless operation of an aircraft. But this is the very first time anything like that’s been done.

The notion that these regulations can just apply to model aircraft or what we now call civilian drones is incongruous. You’ve got regulations that are set up to deal with people flying on airplanes. They talk about seatbelts and all sorts of regulations concerning the aircraft crew. To suggest that flying a model aircraft too close to a building is the same kind of safety violation as flying a real manned aircraft loaded with fuel close to a building is absurd. And the administrative law judge said it was absurd.